Multiple marriages are often a fact of life. According to the U.S. census bureau, 42 million Americans have been in more than one marriage. Divorce and the death of a spouse are the leading factors contributing to the end of marriages in the United States.

A new marriage is considered a fresh start for many, but a large percentage of people in second marriages have at least one child from their previous marriage. This begs the question: what is fair in a second marriage and estate planning? Furthermore, what are the right steps to take when planning your estate in a second marriage? Stay with us to find out.

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Community Property vs. Separate Property

Let’s start with the concept of community property vs. separate property. This is very important for California residents because is one of the few states that recognize community property law in the United States of America. As such, California’s constitution makes specific provisions for the designation of debt and assets obtained during the marriage.

Let’s dig into that. For married couples in California, there are three classes of property. The classification of the properties determines how they’ll be divided among the spouses in the event of a divorce or annulment of the marriage. Understanding these classes of property can provide more insight regarding property ownership and estate planning in a second marriage, so let’s take a careful look at each one.

  • Community Property:  California laws describe community property, also known as marital property, as any real or personal property or life estate, in whatever location, which was acquired by the couple in marriage while living in the state. In other words, this is the stuff you own together.
  • Separate Property: Unlike community property, separate property can be described as any real or personal property, in whatever location, that was acquired by the spouse before the marriage or after the annulment of the marriage. Even during the marriage, assets that were acquired as gifts or inheritance will be classified as separate property. In other words, this is the stuff each of you owns separately (as the name implies).
  •  Quasi-Community Property: This is very similar in definition to community property. The only difference is that a quasi-community property was acquired in another state before moving to California.

Property division in the event of a divorce or annulment, as mentioned earlier, tows the lane of the classification of such property. When divorce occurs and property division is to take place, community properties and quasi-community properties are divided 50/50 between the couple.

This is not the case for the separate property, as each party gets to keep their separate properties in the event of divorce. It is noteworthy that the couple can make a written agreement for a property to be classified as separate even if such property was acquired during the marriage.

Key Estate Planning Considerations for Second Marriages

what is fair in a second marriage and estate planning

As mentioned earlier, a second marriage may be considered a fresh start for many. This is why you should use it as an opportunity to review your estate plans and update them to cater to your interests and those of your spouse, an adult or minor child or children (if any), and other secondary beneficiaries.

In a second marriage, the estate planning process should be given utmost importance. After all, careless plans can result in conflict as well as the disinheritance of your beneficiaries.

Here are some important questions to consider when conducting estate planning for second marriage.

General

  • Do you have life insurance?
  • Which estate planning technique will be most suitable for you?
  • Have you updated your primary beneficiary or beneficiaries? We will examine this in more depth in a moment.
  • Is your designated advisor, executor, or trustee still the right person for the job?

Kids

  • Are you looking to have more children with your new spouse? If yes, what provisions will you make for them?
  • What provisions will you make for your biological children?

Assets and Debt

  •  Which properties do you want to hold separately?
  • How will you manage debts in your estate plans?
  • What assets are you planning to hold jointly?
  • Have you reviewed your financial accounts?

Wills

  • Do you need to update your will?
  • Will you consider mutual will?

Answering the questions above can help you and your new spouse to make the best estate plan possible. It will help you cater adequately to your needs and your beneficiaries’ needs without loopholes. This will also keep you on the same page with your spouse, as there will be no fear of future disputes arising from a conflict of interests.

Naming and Updating Spouse Beneficiaries in a Second Marriage

When entering a second marriage, it is only fair that you review your estate plans to cater to your new spouse. Are there areas of your estate plan where you named your ex-spouse or deceased spouse from your previous relationship or marriage as a beneficiary? You may have to review and change the beneficiary name to that of your current spouse.

Furthermore, when making estate plans in a second marriage, it is not advisable to add your new spouse as a joint tenant to your house with rights of survivorship, especially if there are children from a previous marriage involved. Making this mistake can give your surviving spouse the exclusive right to the house without consideration for the stipulations in your estate plans. Therefore, it is important that assets such as real estate, bank accounts, retirement plans, and life insurance policies are exclusively titled to you, with a trust designated as their beneficiaries.

Is a Pre-Nuptial Agreement Important for Second Marriage?

A prenuptial agreement is an agreement signed by partners before marriage that discloses all the assets of each spouse and stipulates how they want these assets to be divided and distributed in the event of death or divorce. Prenuptial agreements are useful for other things too, such as business and property protection, protection of pension and retirement plans, and a stipulation of the terms of asset division in the event of divorce, among other things.

This agreement, otherwise called a prenup or premarital agreement, is very important in a second marriage and highly recommended. It helps to protect the inheritance of biological children, eliminating the risk of disinheritance.

Estate Planning for Second Marriages with Children

Second marriages in which both spouses have had children with their previous spouse or deceased spouse require a lot more careful considerations when making estate plans. It is only normal for each spouse to want the best for their biological children. It can be hard to avoid a conflict of interests in this kind of situation because, just like your spouse, you want to make adequate provisions for your children as well as your spouse.

Here are some special steps you can consider when determining what is fair in a second marriage and estate planning when children are involved.

Conduct a Review: When getting into a subsequent marriage with minor or adult children, it is very important that you review any existing plans you have made Take a second look at your will or trust and make necessary changes in order to avoid estate planning issues.

Make Additional Plans: You may also need to make additional arrangements. Adding a qualified terminable interest property trust (QTIP), separate marital trust, or other separate trusts can help with estate planning that encompasses your new family arrangement. This type of trust provides for your spouse while restricting access to the trust principal, thereby protecting the inheritance of your children and minimizing estate tax.

Protect Children with Special Needs: There are additional arrangements that can be made to cater to the special needs of children with special needs. A special needs trust (SNT) adequately caters to such children in a second marriage in terms of their education and medical decisions.

Adjust for Age: Don’t forget to consider your children’s age when making your estate plans. If they are adult children, a power of attorney or a deed of gift can help to transfer assets to them. However, if they are minors, you may want to consider placing their inheritance in a revocable living trust or irrevocable trust, which would also help in minimizing estate taxes. Don’t forget to designate a trustworthy trustee to oversee and manage the assets on their behalf.

Do I Need a Lawyer to Determine What Is Fair in a Second Marriage and Estate Planning?

The complexity of estate planning in second marriages makes it hard for anyone to try it truly pro bono. If you are looking to make adequate estate plans in your second marriage that will protect your interests as well as that of your spouse and biological children, it is highly recommended that you use outside resources.

If your estate is very large or complex, you may want to hire a lawyer. The estate planning attorney’s main role would be to help you determine and decide when you need a trust or plan and what type of trust or plan will be most suitable to establish in your case. Also, an expert estate planning lawyer will be able to give you legal advice on every step you take in the course of your estate planning journey.

However, an estate planning lawyer is very pricey, with rates in the hundreds of dollars per hour. If you’re looking for an alternative, consider using A People’s Choice. Our legal document preparation service can help you locate and fill out the correct estate planning forms completely and correctly, all at a fraction of the cost of a lawyer.

Start Planning Your Estate

Planning your estate adequately in a second marriage with children is obviously not an easy feat to achieve. However, by carefully considering all important factors, you will be able to set up a comprehensive estate plan that documents all your wishes and protects the interests of your spouse and children.

Should you need any more information regarding estate planning for a blended family and second marriage, feel free to check other posts regarding this topic on A People’s Choice. You can also contact us for consultations on comprehensive estate planning documents and trust documents. Our reputable team of experts is always available to plan your estate professionally and at an affordable cost. Don’t put it off; get started today!

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